Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Tuesday, February 09, 2016

John Knox UN Special Rapporteur on Human Rights and the Environment Presents Two Important Reports to the UN Human Rights Council

Professor Knox has just reported that he will be presenting two new reports to the UN Human Rights Council, one on implementation and one on climate change, to the U.N. Human Rights Council at its March 3, 2016 meeting. He plans to meet with civil society representatives March 2, 2016 at the UN's offices in Geneva. The Implementation Report--Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (A/HRC/31/53; 28/12/2015)-- will be available in English, French, Spanish, Arabic, Chinese and Russian (E F S A C R). The second, on Climate Change, details a variety of efforts to focus on relevant issues.

These reports reflect an important step forward in the conceptualization of the way in which environmental and sustainability issues are deeply embedded both in the discourse of human rights and in the ideologies of regulatory governance directed from those with the capacity to order and control to and for the benefit of those on whose bodies and communities the adverse effects of all of these efforts (or lack thereof) tends to fall. It is particularly useful for its quite important illustration of the framework within which regulatory governance beyond the nation-state now appears to be increasingly framed--in terms of transparency regimes (eg here), capacity building (but whose?), rights protections (but not state duty (eg here)), and harmonization (through cooperation frameworks). Like the other great frameworks of transnational norm making (eg the OECD Guidelines for Multinational Enterprises, the UN Guiding Principles for Business and Human Rights), these efforts are addressed to those with power ("in a position to
implement human rights norms in relation to the environment"). To those others, especially those considered weak governance or conflict zones, other states and transnational actors will step in (eg here, and here). The emerging jurisprudence of application will do much to naturalize these conduct norms within critical, and critically powerful stakeholders it is hoped (eg here, and here). As for the rest, they are consider themselves lucky to be the beneficiaries of these great efforts, and to the extent that civil society, states and others presume to represent their interests and desires, also to participate indirectly through these representatives who are subject to variously effective methodologies of accountability (eg here). It is, in a way, the best one can do at the moment (eg here). But it also represents a hint of the great work that remains after the complex process of transnational norm identification and adoption is completed (eg here).

Within these frameworks, Professor Knox has moved the conversation forward in important ways. The emerging connections between environment, sustainability, and human rights is a critical addition to the discourse the development of which is a key element of any structure of individual, institutional, state to international obligation.

On March 3, in Geneva, I will present two new reports to the UN Human Rights Council, one on implementation and one on climate change. The reports are now available here.

Report on implementation. The report on implementation, A/HRC/31/53, is submitted pursuant to Council Resolution 28/11, which requested me to hold an expert seminar on the effective implementation of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, challenges thereto, and the way forward. In accordance with that request, and with the support of the Office of the High Commissioner for Human Rights and the United Nations Environment Programme (UNEP), I organized a meeting of more than 20 experts on 26 and 27 October 2015, and held a public consultation on 28 October. In addition, I received more than 40 written submissions from Governments, civil society organizations, and others.

Drawing on all of those sources, the report describes possible methods of implementing human rights obligations relating to the enjoyment of a healthy environment. Although the methods listed are not exhaustive, they give a wide range of approaches that would further the following goals, among others: (a) disseminating information about the human rights norms relating to the environment; (b) building capacity; (c) protecting the rights of those who are most vulnerable; and (d) strengthening cooperation between different actors. The report is addressed to all those in a position to implement human rights norms in relation to the environment, including the Human Rights Council and other intergovernmental organizations; regional human rights bodies and other regional organizations; Governments and national human rights institutions; civil society organizations; and myself.

Report on climate change and human rights. My main thematic focus in 2015 was the relationship between climate change and human rights. As I described in a previous newsletter, last spring I and other special procedure mandate holders issued a joint report for the Climate Vulnerable Forum, which emphasized that even a two-degree increase in average global temperature would have grave effects on the worldwide enjoyment of human rights. I also joined with other mandate holders in a statement released on World Environment Day, June 5, which drew attention to specific ways that climate change interferes with human rights.

In December, I attended the Paris conference of the parties to the UN Framework Convention on Climate Change in December. I joined the High Commissioner and other special procedure mandate holders in urging the parties to include a strong reference to human rights in the climate agreement under negotiation. As you know, the parties succeeded in adopting a new climate agreement on 12 December 2015. The Paris Agreement commits States to a range of actions to address climate change. Notably, it also includes the strongest language on human rights of any global environmental treaty: “Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity.”

In my report to the Human Rights Council on climate change and human rights, A/HRC/31/52, I describe the increasing attention paid to the relationship between climate change and human rights in recent years, review the effects of climate change on the full enjoyment of human rights, and outline the application of human rights obligations to climate-related actions. The report assesses the Paris Agreement in light of the procedural and substantive human rights obligations of States relating to climate change. It concludes that in order to ensure that global temperatures do not rise to levels that would impair a vast range of human rights, States should fully implement all of their commitments in connection with the Paris Agreement and strengthen their commitments in the future. Each State must also adopt a legal and institutional framework that assists those within its jurisdiction to adapt to the unavoidable effects of climate change. In all of these actions, States must take care to protect the rights of the most vulnerable.

In Resolution 28/11, the Human Rights Council requested the Special Rapporteur to continue to study human rights obligations relating to the environment and to identify good practices in the use of such obligations, but also to “promote and report on the realization of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment,” to disseminate his findings by “continuing to give particular emphasis to practical solutions with regard to their implementation,” and to “work on identifying challenges and obstacles to the full realization” of such obligations.

To fulfill Resolution 28/11, the Special Rapporteur, with the support of OHCHR and the United Nations Environment Programme, organized an expert seminar on 26 and 27 October 2015 (concept note). He also held a public consultation on 28 October 2015 (concept note). In addition, in response to questionnaires sent on 7 October 2015, the Special Rapporteur received more than 40 written submissions. In all of these forums, he received valuable input from representatives of governments, civil society organizations, international organizations, and academics.

In this report, the Special Rapporteur describes possible methods of implementing human rights obligations relating to the enjoyment of a healthy environment. The methods listed are not exhaustive, but they give a wide range of possible approaches, including: (a) better dissemination of information about the human rights norms relating to the environment; (b) capacity-building; (c) protection of the rights of those who are most vulnerable; and (d) strengthening cooperation between different actors.

The report is addressed to the entire range of actors that could implement human rights norms in relation to the environment. Proposals are organized in categories corresponding to the actors that would carry them out, including: (a) the Human Rights Council and other intergovernmental organizations; (b) regional human rights bodies and other regional organizations; (c) national governments; (d) non-State actors, including civil society organizations; and (e) the Special Rapporteur himself.

The implementation report (A/HRC/31/53) is available in all UN languages: E F S A C R

Pursuant to resolution 26/27, a full-day panel discussion was held during the twenty-eighth session of the Human Rights Council on 6 March 2015. The first part of the panel discussion focused on challenges and ways forward towards the realization of human rights for all, including the right to development, in particular those in vulnerable situations, as well as measures and best practices to promote and protect human rights that can be adopted by States in addressing the adverse effects of climate change on the full and effective enjoyment of human rights. The second part focused on the adverse impacts of climate change on States’ efforts progressively to realize the right to food, and policies, lessons learned and good practices.

The concept note and summary of the panel discussion are each available.
Climate change mapping report

In response to Human Rights Council resolution 19/10, the Special Rapporteur (then the Independent Expert) undertook an extensive research project to map the statements made by important sources on the human rights obligations relating to the environment. A specific report within the project was dedicated to the human rights obligations relating to climate change. This Climate Change mapping report describes statements made by human rights bodies on the human rights threatened by climate change and on the human rights obligations relating to climate change.
OHCHR study on the relationship between climate change and human rights

In accordance with the Human Rights Council resolution 7/23, the Office of the United Nations High Commissioner for Human Rights, in consultation with and taking into account the views of States, other relevant international organizations and intergovernmental bodies and other stakeholders, conducted a detailed analytical study of the relationship between climate change and human rights. The Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights (A/HRC/10/61), which was released in 2009, discusses how observed and projected impacts of climate change have implications for the enjoyment of human rights and for the obligations of States under international human rights law.

Engagement with United Nations Framework Convention on Climate Change (UNFCCC)

The Special Rapporteur on human rights and the environment has actively engaged various international mechanisms, in particular, the Conference of Parties to the United Nations Framework Convention on Climate Change (UNFCCC), having attended the COP20 in Lima, Peru in December 2014 and the Bonn Climate Change Conference in June 2015.
Open Letter to State Parties to UNFCCC

In October 2014, the Special Rapporteur together with 28 Special Procedures mandate-holders transmitted an Open Letter to State Parties to the UNFCCC urging them "to adopt urgent and ambitious mitigation and adaptation measures to prevent further harm" and to include in the 2015 climate agreement a paragraph that "the Parties shall, in all climate change related actions, respect, protect, promote and fulfil human rights for all, and to launch a work program to ensure that human rights are integrated into all aspects of climate actions."

The Open Letter is available in English and French.
Joint Statements by the UN Special Procedures

On 5 June 2015, on the occasion of World Environment Day, the Special Rapporteurs issued a joint statement drawing attention to the grave harm even a two degree Celsius increase in average global temperature would cause to the enjoyment of human rights around the world. The Special Rapporteurs urged the negotiators to reach a climate change agreement that reflects the obligations human rights law places on States to protect and promote human rights.

The joint statement draws on a report prepared by several Special Rapporteurs for the Climate Vulnerable Forum, a group of twenty countries that are especially vulnerable to the effects of climate change. On behalf of the Forum, the Philippines, the current chair, submitted the report, entitled “The Effects of Climate Change on the Full Enjoyment of Human Rights,” on 1 May 2015 to the Conference of Parties (COP) to the UNFCCC. The Forum urged the COP to adopt a more ambitious target in the climate agreement currently under negotiation, in order to avoid the devastating effects of a rapidly warming planet on the basic rights of all of us who inhabit it.

On 22 December 2014, on the occasion of Human Rights Day, all of the United Nations Special Procedures mandate-holders issued a joint statement urging Member States of the UNFCCC to integrate human rights standards and principles in the climate change negotiations during the 20th Conference of the Parties, which was then taking place in Lima, Peru, and in the agreement to be adopted in Paris in December 2015.
United Nations Radio Interview

On 4 May 2015, the United Nations Radio interviewed the Special Rapporteur on human rights and the environment. Listen to the interview: “Incremental increases in global warming can impact human rights”.

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All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

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Globalization Law and Policy Series from Ashgate Publishing

Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

An interview with the Series EditorQueries and book proposals may be directed to:Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholarand Professor of Law, Professor of International AffairsPennsylvania State University239 Lewis Katz BuildingUniversity Park, PA 16802email: lcb911@gmail.com

About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.